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ELCDismissedApplication dated 21st April 2017 (within petition)· [2017] KEELC 343 (KLR)

In re Estate of Thomas Kipkosgei Yator & another (Deceased) [2017] KEELC 343 (KLR)

Environment and Land Court
21 November 2017
AOA. Ombwayo
634 words in judgment
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The bottom line

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An Eldoret court ruled that anyone claiming a share of compensation for funding a land case must file a separate contract lawsuit, not piggyback on the winning case.

What this practically means

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Executive summary

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By an application dated 21st April 2017, Jackson Kipruto Ngetich, the 4th Interested Party in a land compensation petition before the Environment and Land Court at Eldoret, sought orders compelling the petitioners, or alternatively the 1st, 2nd and 3rd Interested Parties, to pay him 30% of the decretal sum through his advocates, Oloo & Oloo Advocates. He contended that he had wholly initiated, researched and financed the petition for seven years on the petitioners' promise of payment, first at 25%, later revised to 40%, 50% and finally 30% of the decretal sum, and that after judgment the petitioners reneged. Nathan Tirop Koech, replying for the petitioners, argued that the applicant was neither a beneficiary of the relevant estates nor an advocate of the High Court entitled to provide legal services, that no proof of payment existed, and that the petition was conducted by the firm of Kipnyekwei & Company Advocates. Justice A. Ombwayo held that sections 1A, 1B, 3 and 3A of the Civil Procedure Act apply only after a cause of action has been identified and a suit filed, and therefore create no cause of action here. Order 40 Rules 1 and 2, dealing with temporary injunctions, were equally irrelevant. The applicant's claim was a substantive breach of contract claim requiring a separate suit in the appropriate court. The application, being unsupported by any legal provision in the Civil Procedure Act or the Environment and Land Court Act, was dismissed with costs.

Key legal issues

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01

Whether the 4th Interested Party's claim to 30% of the decretal sum could be granted by way of application within the petition

Holding

No; the claim was a substantive breach of contract claim requiring a separate suit, and the application cited no applicable legal provision

Reasoning

The court examined the provisions cited by the applicant - sections 1A, 1B, 3 and 3A of the Civil Procedure Act - and found they only operate after a cause of action has been identified and a suit filed, and thus do not create causes of action. Order 40 Rules 1 and 2 concern temporary injunctions and were irrelevant. Neither the Civil Procedure Act nor the Environment and Land Court Act provided a basis for the relief sought, so the application failed.

p. 3

Legal principles established

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  • Sections 1A, 1B, 3 and 3A of the Civil Procedure Act apply only after a cause of action has been identified and a suit filed; they cannot found a standalone substantive claim
  • A party seeking substantive contractual remedies must file a separate suit in the relevant court; such remedies cannot be granted through an application in an unrelated petition

Court orders

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  1. 1.The application dated 21st April 2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21, Laws of Kenyasections 1A, 1B, 3 and 3A
  • Environment and Land Court ActNo. 19 of 2011
  • Civil Procedure RulesOrder 40 Rules 1 and 2
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011 (considered by the court; no specific constitutional provision invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Thomas Kipkosgei Yator & another (Deceased) [2017] KEELC 343 (KLR)", Case Analysis (2017). Application dated 21st April 2017 (within petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/343/eng@2017-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.